More Malarkey About Health Care

The legislative debate is over, but the false and exaggerated claims just keep on coming.

Summary

We’ve seldom seen a piece of legislation so widely misrepresented, and misunderstood, as the new health care law. We stopped counting the number of articles and items we turned out on the subject after the total reached 100.

Some of that is understandable. The debate went on for more than a year, while the different House and Senate bills changed their shape constantly. The final law was the product of an awkward two-step legislative dance that first enacted the Senate’s version, then quickly amended it with a reconciliation "fix." No wonder people are confused.

And even now the misrepresentations continue. The new law is no longer a moving target, but some opponents persist in making false or exaggerated claims about it. Our inboxes are filled with messages asking about assertions that the new law:

Requires patients to be implanted with microchips. (No, it doesn’t.)

Cuts benefits for military families and retirees. (No. The TRICARE program isn’t affected.)

Exempts Muslims from the requirement to obtain coverage. (Not specifically. It does have a religious exemption, but that is intended for Old Order Amish.)

Allows insurance companies to continue denying coverage to children with preexisting conditions. (Insurance companies have agreed not to exploit a loophole that might have allowed this.)

Gives President Obama a Nazi-like "private army." (No. It provides a reserve corps of doctors and other health workers for emergencies.)

"Exempts" House and Senate members. (No. Their coverage may not be as good as before, in fact.)

Covers erectile-dysfunction drugs for sex offenders. (Just as it was before the new law, those no longer in jail can buy any insurance plan they choose.)

Provides federal funding for abortions. (Not directly. But neither side in the abortion debate is happy with the law.)

For details on these claims about the new law, please read our Analysis section.

Analysis

As opponents pointed out during debate, the House and Senate health care bills were very long and complicated documents. They also changed several times, making it difficult even for those who had read (or written) the bills to keep up with what was in them. This was a perfect breeding ground for wild rumors. We picked off a lot of them while the bills were still under consideration, but now that the legislation has been signed into law, we’d like to start cleaning up the rest.

Will the law require all patients to be implanted with microchips?

No. Nothing like this appears in the new law, or in any of the bills that Congress considered. This claim stems from a wild misinterpretation of a provision in the original House leadership’s bill (H.R. 3200) that did not require implantation of anything, and that was, in any case, not part of the final legislation. The part of the original House leadership’s bill that’s usually referenced to support this rather paranoid claim actually would have set up a registry for class III medical devices and class II devices that are "implantable, life-supporting, or life-sustaining." The Federal Drug Administration’s classifications determine how much oversight and regulation the device has — class III devices (such as, for example, replacement heart valves or artificial hips) need pre-market FDA approval; class I devices (like x-ray film or tongue depressors) need only general quality controls. Class II devices, which need to meet performance standards but don’t need pre-market approval, cover a wide range — blood pressure cuffs are class II, but so are cerebral shunts. That’s why the bill specified implantable, life-supporting and life-sustaining devices.

But the bill did not mandate implantable devices of any kind, least of all microchips. Rather, it said that implantable devices will be registered so that physicians can access data about safety and effectiveness in a way that "protects patient privacy and proprietary information." And again, it didn’t become law.

Is TRICARE coverage for military families and retirees affected?

No. Some early scuttlebutt spread by chain e-mails claimed that the House bill would reduce benefits for TRICARE, but we were among the many debunking that false report. See "Health Care Overhaul and TRICARE." And as things have turned out, there’s nothing like that in the new law. Dr. Charles Rice, assistant secretary of defense for health affairs, has said that the beneficiaries will not see any change as a result of the new legislation: "For the Department of Defense, and specifically for our 9.6 million TRICARE beneficiaries, this law will not affect the TRICARE benefit. Eligibility, covered benefits, copayments and all other features of our TRICARE program remain in place.” The Department of Defense TRICARE site says the same thing: "This law will not affect the TRICARE benefit. Eligibility, covered benefits, copayments and all other features of our TRICARE program remain."

Will the Amish, Muslims and other religious groups be exempt from the coverage requirement?

Some Amish may. It’s unlikely that other groups will. We’re still checking out this rumor, but the versions we’ve seen are likely overblown. The law does say that some religious groups may be considered exempt from the requirement to have health insurance, and it uses the definition from 26 U.S. Code section 1402(g)(1), which defines the religious groups considered exempt from Social Security payroll taxes. Eligible sects must forbid any payout in the event of death, disability, old age or retirement, including Social Security and Medicare. They must also be approved by the Commissioner for Social Security. The law was originally designed to apply to the Old Order Amish, and we have yet to find any cases in which members of other religious groups were successfully able to claim exemption.

The Social Security bureaucracy has been slow to respond to our queries about which religious groups have been granted exemptions from the payroll tax. But both the federal government and the courts have been very strict on such exemptions in the past. For instance, in 1982 the Supreme Court found that a member of the Old Order Amish claiming exemption under 1402(g) was in fact subject to payroll tax for his employees. That section, the Court said, is applicable only to the self-employed. And in twocases where self-employed individuals claimed a religious opposition to Social Security but weren’t members of approved sects, they were also ordered to pay the tax.

The Christian Science Church, a religious group with restrictions on health care use, has stated publicly that members will be subject to the insurance requirement.

Will the law allow insurers to continue denying coverage to children with preexisting conditions?

In theory, maybe, but the president of America’s Health Insurance Plans has said they will not do so. The health care law was supposed to forbid insurers from denying coverage for children’s preexisting conditions, starting in 2010 (four years before a similar provision kicks in for everyone else). Democrats pushed this as a major selling point of the bill, but it was called into question just a few days after the law’s enactment when insurance companies said that vague language allowed them to continue denying coverage. Previously, insurers might grant coverage to an uninsurable family if a child had a preexisting condition, but exclude that condition from coverage — that is, the insurance companies wouldn’t pay any costs associated with the condition. The new law forbids them from doing so. But, the insurance companies argued, it does not forbid them from denying coverage outright to the entire family.

However, on March 29, the president of AHIP, the insurers’ lobbying group, wrote a letter to Secretary of Health and Human Services Kathleen Sebelius promising that insurance companies would follow the spirit of the law. "Health plans recognize the significant hardship that a family faces when they are unable to obtain coverage for a child with a pre-existing condition," AHIP President Karen Ignani wrote. "With respect to the provisions related to coverage for children, we await and will fully comply with regulations consistent with the principles described in your letter."

Does the law provide for armed IRS agents to enforce penalties?

No. This is a fantasy. GOP lawmakers claim the law might require “as many as 16,500” new jobs in the IRS, a figure inflated by dubious assumptions. But the agency’s role will be mainly to hand out tax credits, not to enforce penalties. And the IRS won’t be sending armed agents to enforce the health care mandate, as falsely claimed by Texas GOP Rep. Ron Paul. The law specifically waives any criminal penalties for those who both decline to obtain insurance coverage and refuse to pay the tax enacted to penalize lack of coverage. For more on this subject, see our Ask FactCheck “IRS Expansion."

Does the law set up a "private army" for Obama?

No.The health care law establishes a Ready Reserve Corps of doctors and other health care workers who can be called upon in the case of a public health emergency. E-mails that call them "Hitler youth" and speculate that they may be administering "lethal injections" are thoroughly false and malicious. For more on this subject, see our Ask FactCheck "Obama’s Private Army."

Are members of Congress and their staffs "exempt" from the law?

No. House and Senate members must obtain coverage just like everybody else — and the new law may give them more limited choices than they have now. The notion that they would somehow be "exempt" is a twisted idea pushed by some conservatives who opposed the creation of exchanges through which individuals could buy coverage and claimed that everyone except Congress would be forced into the exchange plans. Others opposed creating a new government-run "public option" insurance plan, and claimed (falsely) that most non-lawmakers would be herded into that, while members of Congress continued to get their coverage through the Federal Employees Health Benefits Plan, which also covers 8 million federal workers, retirees and family members. But the "public option" isn’t even part of the new law. Meanwhile, Congress adopted a Republican amendment that takes House and Senate members and their staff workers out of the FEHB, and forces them to obtain coverage through the new state-run insurance exchanges that will be set up in 2014. In the exchanges, private insurance companies will compete for the business of millions of currently uninsured Americans, those who already buy their own coverage and many small-business owners. These exchanges are modeled on the FEHB, and could turn out to offer a more limited selection of policies. That remains to be seen. For more details, see our Ask FactCheck, "Congress Exempt from Health Bill?"

Lately, the debate has shifted to whether some congressional staffers are "exempt" from this Republican-sponsored requirement to get coverage from state exchanges, which is another matter. The law defines congressional “staff” as “full-time and part-time employees employed by the official office of a Member of Congress, whether in Washington, DC or outside of Washington, DC.” That language comes from an amendment to the Senate HELP committee bill written by Republican Tom Coburn, who now says that his own definition is too narrow. Coburn and others argue that this definition excludes committee and leadership staff, including those working for Speaker of the House Nancy Pelosi. The Congressional Research Service agrees that this is possible. Senate Majority Leader Harry Reid’s spokesman told Politico that the provision does apply to leadership staff, but not committee staff. So some Capitol Hill staff workers may still continue to get coverage the same way they always have.

Does the new law cover Viagra for convicted sex offenders?

There’s no change from current law. Convicts who are not in prison can purchase whatever health plan they’d like and some plans could cover erectile-dysfunction drugs. The Congressional Research Service said that there was nothing in the new law that would "require health plans to limit the type of benefits that can be offered based on the plan beneficiary’s prior criminal convictions."

This mini-controversy erupted when Republicans introduced a string of amendments in a final effort to obstruct passage of the reconciliation bill. Republican Sen. Coburn of Oklahoma proposed the amendment to bar sex offenders from getting health plans that covered such drugs with federal money through the state-based exchanges. Democratic Sen. Max Baucus of Montana called the amendment "a crass political stunt." And it failed by a 57-42 vote.

Does the law provide federal funding for abortions?

Not directly, and there are provisions in place to prevent it from doing so indirectly. There’s language in the law that says subsidies from the government can’t be used to pay for abortion services, except in cases of rape, incest or danger to the life of the mother. It’s true that many women who now lack insurance might obtain private policies that cover wider abortion services as a result of the new legislation and with the help of federal subsidies. But insurance companies must keep any subsidy money they receive segregated from premium payments made by private individuals, and must use only private money to pay for abortion coverage. That doesn’t satisfy either side in the abortion debate. Anti-abortion groups are also concerned about increased federal funding for community health centers, but we’ve seen no evidence these centers perform abortions. For more on this subject, see our Ask FactCheck “The Abortion Issue."